Docs & Juries

Insurance agents’ medical malpractice insurance clients will be interested to learn that juries more consistently side with doctors than plaintiffs.  In other words, the tort system favors the physician.  [Bear with us here - we are not buying this.]  A recent study in the Michigan Law Review (see here) compared jury verdicts with the outcomes predicted by a set of independent reviewers, and concluded that physicians consistently win the cases they should win, and win about half of the cases they should lose.

The studies reveal that juries treat physicians very favorably, perhaps unfairly so.

The study concluded that negligence matters.  The degree of negligence has a significant impact on outcomes, and weak cases rarely win.  The study found that juries and experts tend to agree in cases with weak evidence of negligence, and don’t consistently agree in cases with strong evidence of negligence.  The study also found evidence of bias as well.

The consistently low success rate of malpractice plaintiffs in cases that expert reviewers feel they should win strongly suggests the presence of one or more factors that systematically favor medical defendants in the courtroom, such as better litigation teams or pronounced jury reluctance to find doctors liable.

The factors suggested as reasons for variations between juries and reviewers conclusions are:

• the normal variation that occurs when multiple individuals are asked to evaluate the same conduct
• the superior litigation resources sometimes available to one of the parties, usually the defendant
• jury antipathy toward people who sue their physicians
• jury reluctance to find a doctor liable when the proper outcome is unclear

There are lots of problems with this study which will likely provide the basis for significant commentary in the coming months.  Examples include a reliance on the subjective evaluation of negligence and outcomes, and no consideration of claim severity.  And there are many physicians, medical malpractice insurers and other practitioners who have direct experience and a vastly different perspective (including us). 

 

Risk management is also an important consideration when reviewing this study.  If you buy the premise that negligence matters a great deal, then the importance of risk management should be significantly elevated. Risk management works.  If the number of cases with negligence is driven down, the study would indicate that the success in the courtroom will go up.

 

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